H.U.D. Guidance on Assistance Animals

By Kelly G. Richardson, Esq., CCAL

Assistance animals are very important to certain disabled individuals. Under the federal Fair Housing Act (42 United States Code 3601 and following), and California Fair Housing Regulation section 12005(d) such animals are not pets, and housing providers (including HOAs) must make reasonable accommodations to permit such animals. However, the lack of guidelines and definitions regarding assistance animals has hampered the ability of deserving disabled persons while at the same time permitting broad abuse by persons not needing such assistance.

Until 2020, the only guidance available from the United States Department of Housing and Urban Development (H.U.D.), was a 2004 guide issued jointly with the US Department of Justice along with a letter H.U.D. published in 2013. However, on January 28, 2020 HUD issued important new guidance regarding the making, or receipt, of assistance animal requests. The 19 page document, called “Assistance Animal Notice FHEO 2020-1” is available at www.hud.gov or www.hoahomefront, and includes helpful guidance regarding how housing providers should respond to requests for assistance animals.

The H.U.D. Notice is written in plain English, provides an 8-step process for responding to assistance animal requests, and includes many helpful tips on each step in the process.

As with California’s Fair Housing Regulation 12185(c)(2), the H.U.D. notice requires an individual assessment of the person seeking an assistance animal, and rejects websites which generate automatic “certificates” of need for assistance.

The H.U.D. Notice differs in some important respects from California’s Fair Housing Regulations, since H.U.D. is addressing federal law, while California’s regulations were promulgated by the State Civil Rights Council. For example, the H.U.D. notice states that “health care professionals” can attest to a non-obvious disability and the resulting need for an assistance animal, while the California regulations at 12178(f) also allow a peer group member, non-medical service provider, or any other reliable third party to document the need for the assistance animal.

However, if the disability is obvious, such as visual impairment, deafness or mobility impairment, the requestor need not submit documentation of the disability, under this Notice. California’s Fair Housing regulations at Section 12178(b) are consistent with H.U.D. on this point.

California Fair Housing regulations do not include any species restriction on assistance animals, but the H.U.D. Notice creates two animal categories, “animals commonly kept in households,” and “unique animals”. The first includes dogs, cats, small birds, rabbits, rodents, fish, turtles, “or other small, domesticated animal(s)” while all other animals, including reptiles other than turtles, monkeys, and “barnyard animals” are considered “unique animals.” According to the Notice, the requestor has a “substantial burden” of demonstrating the need for the unique animal. However, if the requestor meets that burden, the unique animal may be allowed.

Associations, their boards, and their managers (all of which under the California regulations are considered the “owner” for enforcement purposes) should be aware of the existence of Fair Housing laws and regulations at both the federal and state level. H.U.D. issued Joint Statements with the Department of Justice in 2004 and 2008 which are also helpful regarding accommodation of disabilities.

Hopefully, compliance with the H.U.D. Notice will also be deemed compliant with California’s Fair Housing regulations, but this is not yet clear. Perhaps the Civil Rights Council or the State Civil Rights Department will issue more guidance soon.